Congress Must Figure Out What Our Government Is Doing In The Name of the AUMF

A common assumption in the debate about the appropriate legal regime for extra-AUMF threats is that the AUMF is cabined and cannot be extended to newly threatening Islamist terrorist threats. Yesterday’s SASC hearing exploded this assumption. The hearing made clear that the Obama administration’s long insistence that it is deeply legally restrained under the AUMF is misleading and at a minimum requires much more extensive scrutiny. It also made clear that the SASC’s oversight of the basic legal regime for DOD operations has not been (until yesterday) serious.

DOD officials insisted that they are satisfied with their AUMF authorities and don’t at this time need new ones. In the course of explaining why this is so, they articulated a very broad vision of the scope of the AUMF. As Senator King said: “[Y]ou’re saying we don’t need any change [in the AUMF] because of the way you read it we can do anything. . . . The way you read it there’s no limit.”

Consider some of the DOD positions articulated yesterday. When asked by Senator McCain whether “the 2001 AUMF be read to authorize lethal force against al Qaeda’s associated forces in additional countries where they are now present, such as Mali, Libya and Syria,” Acting DOD General Counsel Robert Taylor said: “On the domestic law side, yes sir.” When asked by Senator Graham whether the President has domestic authority to put boots on the ground in Yemen and Congo, Assistant Secretary of Defense for Special Operations and Low-Intensity Conflict Michael Sheehan answered that “under domestic authority he would have that authority” (Yemen) and “Yes sir he does” (Congo).

Then Senator Donnelly and the DOD officials had this exchange on the al-Nusra front, the powerful AQ-associated rebel group in Syria:

Donnelly: Would you call the al Nusra front in Syria an AQ affiliated terrorist group?

Sheehan: Yes sir, I would.

Donnelly: Would you say that the AUMF applies to the al Nusra front? . . .

Taylor: As with many things with Syria, we’re looking very hard and very carefully and I don’t have a definitive answer for you at the moment.

Donnelly: . . . Would we have the ability to act against al Nusra today under the AUMF?

Sheehan: Yes sir, we’d have that ability to act against al Nusra if we felt they were threatening our security. We would have the authority to do that today.

Donnelly: Do we feel today that al Nusra is threatening our security?

Sheehan: I don’t want to get in in this setting for how we target different groups and organizations around the world.

At the end of the first panel, Sheehan attempted to walk back some of his testimony when he stated:

When I said that he did have the authority to put boots on the ground in Yemen or Congo I was not necessarily referring to that under the AUMF. Certainly the President has military personnel deployed all over the world today, in probably over 70-80 countries, and that authority is not always under AUMF. So I just want to clarify for the record that we weren’t talking about all that authority subject to AUMF.

Sheehan’s walk-back raises many questions, including: If the authority for U.S. military personnel to be in 70-80 countries “is not always the AUMF,” how many of those deployments are justified under the AUMF? (The phrase “not always” suggests a high number.) Moreover, Sheehan did not walk back Taylor’s claim about AUMF authorization for Syria, Mali, or Libya, and did not attempt to modify the exchange that implied serious DOD consideration of using force against al Nusra in Syria.

Yesterday’s hearing also reveals that the SASC – which, in anticipation of the supposed transfer of drone control from CIA to DOD has been playing up the robustness of its oversight – has no idea how DOD is interpreting the AUMF. Senator Levin asked whether DOD would provide a list of “associated forces” under the AUMF, implying that the Committee did not know which groups are covered. The Committee also seemed generally clueless and surprised about the legal standard that DOD applies in practice.

Yesterday’s hearing makes plain that the AUMF-war is much broader and much more easily expandable than I (and many on the SASC, it appears) had previously thought. The DOD testimony strongly suggested that DOD has a low legal threshold for identifying the all-important and benign-sounding “associated forces” under the AUMF. Fundamental questions about the scope of the war that Congress has authorized – the groups that constitute the enemy, the nations into which Congress has authorized force, and how determinations of such groups and nations are made – should not be the mystery to DOD’s main oversight committee that yesterday’s hearing made plain it is. It shouldn’t be a mystery to the American people either. But at a minimum, the SASC itself must get a full accounting from the administration about which groups are covered and into which nations DOD thinks Congress has authorized the President to use military force. Those lists should as a matter of law be reported regularly to Congress. They should also, I think, be made public. It should not be a surprise to the American people – and certainly not to DOD’s main oversight Committee – where and against whom Congress has authorized the President to use military force.

Jack Goldsmith is the Henry L. Shattuck Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.